A draft
Constitution Amendment No. 19 was agreed by the negotiators
of the three parties on 27th November after three days of discussions
in South Africa. The draft now has to be approved by the three principals
and this means waiting until all three are back in the country.
As the Bill cannot be introduced into Parliament until at least
30 days after gazetting, it is now impossible for it to be introduced
into Parliament this year.

The negotiation
of the draft was fraught with difficulties. ZANU-PF provided their
draft, which they had drawn up without consultation with the other
parties. MDC-T had their own preparatory draft. It would have been
more sensible to have had all three parties working on producing
one consolidated draft starting immediately after the conclusion
of the Power-Sharing Agreement.
Nonetheless, after marathon sessions the parties managed to come
to some agreement and all initialled a combined draft.

Key
points of agreed Constitutional Amendment

We will distribute
a summary/commentary on the draft [the “draft” refers
to the draft Constitutional Amendment] as soon as possible. In the
meantime we note the following:

Recognition
of Mugabe as President

Tthe draft provides for the post of President to “continue
to be occupied” by Mr. Mugabe, and for Mr. Tsvangirai to occupy
the post of Prime Minister [see section below on Motlanthe comment
on recognition]

Unilateral
cancellation of inclusive government

Unlike the ZANU-PF
draft, the draft does not authorize Mr Mugabe [as President] to
terminate the inter party agreement unilaterally

Recognition
of original agreement of 11th September

The draft includes
a schedule which sets out the text of the Power-Sharing Agreement
and reflects the text signed on 11th September, including wording
not present in, or differing from, the text signed at the formal
signing ceremony on 15th September: [Note: The draft Constitution
uses the term “Inter-party Political Agreement”. >From
now on we will use that term [abbreviation IPA] instead of the terms
“Power Sharing Agreement” and “Global Political
Agreement” used in previous bulletins.]

The
provision on appointments to senior government positions

[e.g. Permanent
Secretaries, Ambassadors] having to be agreed by the President,
Vice-Presidents, Prime Minister and Deputy Prime Ministers, was
in the original IPA and is now in the draft constitution.

Some
provisions in the draft still left open to agreement

The draft leaves
it to the Principals whether to confirm the original wording [11
Sept] or the use the altered version [15 Sept] of the IPA in certain
provisions – these provisions are annotated in the draft as
being subject to rectification or confirmation by the Principals.
These provisions deal with:

the number
and sharing between parties of additional appointed Senate seats

appointment
of Vice-Presidents, Prime Minister and Deputy Prime Ministers
from outside the ranks of members of Parliament

appointment
of Ministers from outside the ranks of members of Parliament

Recognition
of what "de facto" but not legally installed Ministers
have done

Unlike the ZANU-PF
draft, the draft does not seek to validate measures taken after
the 26th August by persons functioning as Ministers but doing so
in breach of the Constitution because they do not hold seats in
Parliament.

No provision
for existing Zimbabwe Electoral Commission [ZEC] members

Unlike the ZANU-PF
draft, there is no express provision retaining existing ZEC members
in their positions until the expiry of their terms of office

By-Elections

The draft does
not contain a clause stopping by-elections for 12 months, notwithstanding
that the IPA requires such a ban

National
Security Council

The draft does
not go into detail on the composition and functions of the National
Security Council

The Kariba Draft
Constitution’s provisions on Citizenship, Independent Commissions
[Electoral Commission, Human Rights Commission, Anti-Corruption
Commission and Media Commission] and the Parliamentary Committee
on Standing Rules and Orders are incorporated into the draft as
required by the IPA

Outstanding
issues before formation of inclusive government

Although there
was no open apology for producing an “altered” version
of the IPA at the signing ceremony, most of MDC-T’s outstanding
issues arising from these alterations have been dealt with within
the provisions of the draft Constitution Amendment.

But, the MDC-T
has issued a statement saying that several other issues, which had
been left unresolved by the facilitator and the SADC Summit of 9th
November, had not been dealt with in the draft Constitutional Amendment,
and still need to be resolved:

the equitable
allocation of Ministries

sharing of
provincial governorships

functions
and constitution of the National Security Council

MDC-T dissatisfaction
with SADC/Mbeki

The negotiations
on the Constitution Amendment were facilitated by Mr Mbeki’s
team but not by Mr Mbeki personally. On 19th November MDC-T Secretary-General
Biti wrote
to Mr Mbeki criticising the SADC Summit’s decision of 9th
November. In response Mr Mbeki sent a 10-page letter dated 22nd
November to Mr Tsvangirai strongly criticising the MDC-T’s
attitude. Mr Tsvangirai released a statement dealing mainly with
the humanitarian crisis in the country but also stating the MDC-T'S
position on Mr. Mbeki, He said “…we have written to
the Chairman of SADC, South African President Kgalema Motlanthe,
detailing the irretrievable state of our relationship with Mr Mbeki
and asking that he recuse himself.”

Recognition
of Mugabe presidency

After meeting
President Khama of Botswana on 23rd November, SA President Motlanthe
told the South African public broadcaster that: "We agreed
that, with regards to Zimbabwe, the next step really is to ensure
that we unblock the impasse for them to take Amendment 19 through
the senate and the assembly, so that Tsvangirai could be sworn in
as prime minister and Mutambara as the vice prime minister and Mugabe
as the president, so that once the three of them have been sworn
in they can then form an inclusive government." Commentators
have pointed to the statement as a departure from the policy followed
by the Mbeki presidency. It underlines the fact that for at least
some of our neighbours the legitimacy of Mr. Mugabe's presidency
depends on compliance with the IPA.

Reappointment
of Dr Gono as Reserve Bank Governor

Mr Mugabe’s
reappointment of Dr Gono as Governor of the Reserve Bank for a second
full 5-year term of office expiring in 2013 was surprising coming
as it did just before the talks on the constitutional amendment.
The IPA envisaged the President making such key appointments in
consultation [meaning in agreement] with the Prime Minister. Dr
Gono’s policies and actions have been consistently condemned
by the MDC-T. A short-term extension or an acting appointment –
or an appointment acceptable to the MDC-T – would have been
more appropriate. The appointment can also be questioned on legal
grounds. Under the Reserve Bank Act the appointment should have
been made after consulting the Minister of Finance, but consultation
cannot have taken place because the present incumbent is functioning
as Minister in contravention of the Constitution
as he does not hold a seat in Parliament [Constitution, section
31E(2)].

A five-judge
Supreme Court bench has dismissed an application by a Danish citizen
in which he claimed the compulsory acquisition of his farm was contrary
to the Bilateral Investment Protection Agreement between Zimbabwe
and Denmark. Announcing the decision, Deputy Chief Justice Malaba
said the court’s reasons would be provided later.

Land
Acquisition – SADC Tribunal decision against Zimbabwe Government

Judgment was
given in favour of the landowners in the Campbell case. The basis
of the decision is that the constitutional provision under which
the Government acquired agricultural land in 2005 is in breach of
provisions of the SADC Treaty requiring member States to observe
the rule of law and not to discriminate on racial grounds. [The
breach of the rule of law is the denial of access to the courts
for landowners aggrieved by compulsory acquisition.] [Electronic
version of judgment available] The Tribunal has accordingly ordered
the Government:

to ensure
that the applicants enjoy undisturbed possession and ownership
of their land [this refers to the 75 applicants still on the land]

to pay compensation
to the three applicants who have already been evicted from their
land.

Enforcement
of the Tribunal’s decisions against member States is a matter
for the SADC Summit. So, if the Government does not comply with
the Tribunal’s order, the applicants will have to go back
to the Tribunal with proof of non-compliance, and ask the Tribunal
to refer the matter to the Summit. [Note: The Government’s
failure to comply with the Tribunal’s earlier interim protection
orders in the Campbell case was referred to the August SADC Summit.
The Summit referred the matter to the Committee of Ministers of
Justice for advice. Further developments are awaited.]

Election
cases

None of the
pending election petition appeals to the Supreme Court has been
set down for hearing. The Supreme Court is now on vacation until
mid-January, so hearings before then are unlikely, The same applies
to Mr Chiota’s application for the setting aside of the Presidential
election result on the basis of nomination court irregularities.

Update
on Statutory Instruments

SI 168/2008
– Roads (Fuel Levy) Notice – this sets out the details
of a levy on petrol and diesel to be paid to the National Road Administration
[ZINARA] by licensed fuel importers. The levy is for the benefit
of the Road Fund established by the Roads Act [section 22]. The
Fund must be used primarily for road maintenance.

SI 105C/2008
– this notice, gazetted on 29th October under the Customs
and Excise Act, fixes rents for State warehouses. [Electronic version
available]

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